Decision Date: 09/21/95 Archive Date: 01/17/96
DOCKET NO. 92-25 916 ) DATE
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)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Wichita, Kansas
THE ISSUE
Entitlement to service connection for bilateral hammertoes.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
K. Parakkal, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1951 to July
1955.
This matter comes to the Board of Veterans’ Appeals (Board)
on appeal from a July 1993 RO decision that denied the
veteran’s claim of service connection for bilateral
hammertoes.
In September 1993, the veteran withdrew from appellate
consideration the claims of service connection for tinnitus
and a scar above the left eye.
A claim for compensation may be considered to be a claim for
pension. This matter is referred to the RO for appropriate
action.
REMAND
The veteran contends that he has bilateral hammertoes and
that this condition was aggravated by his service.
Specifically, he maintains that the ill-fitting shoes he was
required to wear as well as the activities he was required to
perform as a soldier made his feet blister and develop corns,
and caused his hammertoe condition to worsen beyond its
normal progression and to have to undergo surgery after
several years of service.
A service medical record, dated in August 1951, does not
reveal that the veteran entered the military with any
pertinent abnormalities or defects. However, subsequently
dated records (April 30, 1954) show that he was diagnosed
with hammertoes of the second toes. The origin of the foot
condition was reported as having been sustained in the line
of duty. He complained of acute foot discomfort and said
that he has had this condition since childhood. Records show
that he was transferred to the Naval Hospital in Portsmouth,
Virginia, for surgical correction.
Medical entries at Portsmouth, Virginia, reflect that in
April 1954, the veteran was again diagnosed with bilateral
hammertoe of the second toe. It was reported that this
condition was not due to his own misconduct and had not
existed prior to his enlistment. His corns and the proximal
phalanges were excised.
There is some indication that he was in the Reserves after
completing his period of active service, but none of these
records are on file. He alleges that military medical
records indicating that he underwent surgery on his toes
establish an increase in disability during service. He notes
that in addition to the removal of corns, other surgery was
performed on the second toes of both feet, indicating that on
his right foot, the joint of the toes was removed and fused,
making his toe stiff and shorter in length.
The case need to be developed further from a medical
standpoint and attempts should be made to see if there are
additional medical records for the period of reserve service.
Hence, this case is REMANDED to the RO for the following
actions:
1. The RO should ask the veteran to
identify (names addresses, dates) all
preservice, reserve service, and post
service treatment and hospitalization (VA
and non-VA) for his foot condition. The
RO should then directly contact the
sources and obtain copies of such medical
records, not already on file, following
the procedures of 38 C.F.R. § 3.159.
2. The RO should try to obtain the
veteran’s service medical records for his
period of reserve service.
3. The claims folder should thereafter
be forwarded to a VA orthopedic physician
for review. After reviewing the claims
folder, the physician should examine the
veteran and opine whether it is at least
as likely as not that the veteran’s foot
disorder clearly existed prior to
service, and, if so, was chronically
worsened therein or, if not preexisting
service, is attributable to service.
4. The RO should adjudicate the claim of
service connection for bilateral
hammertoe based on all the evidence of
record. If the benefit sought is denied,
a supplemental statement of the case
should be issued.
After the veteran and his representative have been given an
opportunity to respond to the supplemental statement of the
case, the claims folder should be returned to this Board for
further appellate review. No action is required of the
veteran until he receives further notice. The purposes of
this remand are to procure clarifying data and to comply with
governing adjudicative procedures. The Board intimates no
opinion, either legal or factual, as to the ultimate
disposition of this appeal.
M. CHEEK
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1994).
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